Common Law Workers’ Compensation: A Complete Guide

If you have been injured at work in Queensland and an employer’s negligence caused or materially contributed to the injury, a common law workers’ compensation claim may be open to you. A common law claim sits alongside the statutory pathway and may compensate you for losses the statutory scheme does not cover, including pain and suffering, future economic loss, and future care. This guide explains how common law workers’ compensation works in Queensland: the four-element negligence test, the heads of damage, the claim process, the time limits, and the factors that affect the size of an award.

A Quick Guide to Common Law Workers’ Compensation

A common law workers’ compensation claim is a fault-based damages claim brought against an employer (via their workers’ compensation insurer) whose negligence caused or materially contributed to a workplace injury. Unlike a statutory workers’ compensation claim, which is no-fault and covers wages, medical and allied health treatment, and rehabilitation, a common law claim may compensate for pain and suffering, past and future economic loss, gratuitous care, and out-of-pocket expenses. Common law workers’ compensation claims are governed by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and the general law of negligence.

What Is a Common Law Workers’ Compensation Claim?

A common law workers’ compensation claim is a claim for damages against an employer whose negligence caused or materially contributed to a workplace injury. It is a separate phase to the workers’ compensation claims process from the statutory workers’ compensation claim a worker may lodge with the workers’ compensation insurer (WorkCover Queensland or a self-insurer) under the Workers’ Compensation and Rehabilitation Act 2003 (Qld). Our Workers’ Compensation: What You Need to Know guide covers the statutory pathway in detail; this article focuses on the common law side. WorkSafe Queensland sets out the common law pathway and how it sits alongside the statutory scheme.

The statutory pathway is no-fault. The common law pathway is fault-based and requires the worker to establish the four elements of negligence set out below. Where both pathways apply to the same injury, the statutory claim is generally finalised before the common law claim is commenced.

Statutory Claims Versus Common Law Claims

Two phases to the compensation pathway exist for a single workplace injury in Queensland, and the decision to proceed with the common law claim may shape the value of the overall outcome. We cover the statutory pathway in detail in our overview guide, Workers’ Compensation: What You Need to Know. The summary below sets the context for the common law deep dive that follows.

A statutory workers’ compensation claim is the standard, no-fault claim under the Queensland scheme. It covers weekly payments, medical and allied health treatment, rehabilitation, and (depending on the severity of any permanent impairment) a statutory lump sum offer at the end of the claim.

A common law workers’ compensation claim is a fault-based damages claim. It requires the worker to prove that the employer breached its duty of care and that the breach caused or materially contributed to the injury. The heads of damage available are broader than the statutory benefits and may include pain and suffering, past and future economic loss, gratuitous care, and out-of-pocket expenses.

At the end of an accepted workers’ compensation claim and depending on the severity of the permanent impairment from your injuries, you may need to choose between accepting (a) a statutory lump sum offer from the workers’ compensation insurer or (b) pursuing a common law claim for damages against your insurer. In some cases where your permanent impairment is high enough, you may be entitled to both. Getting legal advice before any decision about a statutory lump sum offer from a workers’ compensation insurer is recommended.

The Four-Element Negligence Test

To succeed in a common law workers’ compensation claim against an employer, a worker must establish four elements. All four must be present to succeed in a successful outcome should your matter proceed to a Trial.

Duty of Care

An employer owes its workers a duty of care to provide and maintain a safe place of work. The duty extends to safe equipment, safe premises, safe systems of work, adequate training and supervision, and a safe psychological work environment. The duty is non-delegable in the workplace context: an employer may not avoid liability by outsourcing the relevant tasks to a contractor.

Breach of That Duty

A worker must show that the employer breached the duty of care. A breach occurs where the employer’s conduct fell below the standard of care a reasonable employer would have exercised in the same circumstances. Common examples include unsafe equipment, inadequate training, failure to enforce safety procedures, exposure to known hazards without proper controls, and inadequate supervision of high-risk tasks.

Caused or Materially Contributed to the Injury

The breach must have caused or materially contributed to the worker’s injury. The “materially contributed to” qualifier matters: the worker is not required to show the breach was the sole cause, only that it played a material part. Causation is assessed under the general law of negligence and, for Queensland, under s 11 of the Civil Liability Act 2003 (Qld).

Foreseeable to the Employer

The outcome must have been foreseeable to the employer. Foreseeability is assessed objectively: a reasonable employer in the same position would have foreseen that the type of harm the worker suffered may result from the breach. The question is what was reasonably foreseeable before the injury, not what is obvious afterwards.

Whether your specific situation meets each of the four elements depends on the evidence, the medical position, and the work circumstances at the time of the injury, so a free case review is the best starting point.

Heads of Damage in a Common Law Claim

Damages in a common law workers’ compensation claim are made up of several heads of damage. Each head compensates a different category of loss. The categories below are the heads that commonly apply in Queensland workplace injury claims.

General Damages (Pain and Suffering)

General damages compensate for pain and suffering, loss of amenities of life, and loss of expectation of life. In Queensland workers’ compensation claims, general damages for personal injury are assessed using the Injury Scale Value (ISV) framework under the Workers’ Compensation and Rehabilitation Regulation 2025 (Qld). The ISV scale ranges from 0 to 100, and medical evidence is used to identify the appropriate range for the injury type and to position the worker’s injury within it.

Past and Future Economic Loss

Economic loss compensates for the income, superannuation, and earning capacity lost as a result of the injury. The past component covers wages the worker has already lost. The future component covers the wages the worker is reasonably likely to lose, calculated by reference to age, occupation, earning history, residual earning capacity, and remaining working life. The gap between statutory weekly payments and actual earnings is often a significant driver of the future economic loss component, as we explained in The Unfair Gap for Injured Workers in Queensland.

Past and Future Medical and Allied Health Expenses

This head, sometimes called special damages, covers the reasonable cost of medical and allied health treatment caused by the injury, including doctor visits, surgery, hospital stays, physiotherapy, occupational therapy, psychology, medication, and assistive equipment. The future component reflects the treatment the worker is reasonably likely to require, calculated using medical and rehabilitation evidence.

Care

Compensation for care and assistance provided with domestic duties can be claimable in certain circumstances in a workers’ compensation claim in Queensland.

Out-of-Pocket Expenses

Out-of-pocket expenses cover the worker’s incidental costs caused by the injury, including travel to medical appointments, prescriptions, aids and equipment, and other reasonable expenses related to recovery.

A Note on Exemplary Damages

Exemplary damages are awarded to punish the wrongdoer rather than to compensate the worker. They are rarely awarded in personal injury matters because they require conduct so egregious that punishment is warranted, which is uncommon in negligence-based workplace injury claims. They are often not a component of a workers’ compensation claim; however, it is something to be considered in particular circumstances. The standard heads in a Queensland workers’ compensation common law claim are general damages, economic loss, medical and allied health expenses, gratuitous care, and out-of-pocket expenses.

The Common Law Claim Process

A common law workers’ compensation claim follows a structured pre-court process before any court proceedings can be filed. We work alongside the worker through each step.

Notice of Assessment and the Election

The statutory claim with the workers’ compensation insurer is generally finalised before a common law claim is commenced. Once the worker’s condition is considered stable and stationary, the worker undertakes a permanent impairment assessment and is issued with a Notice of Assessment, which may include a statutory lump sum offer. We meet to discuss the worker’s rights carefully before any decision is made about the offer, including what the common law prospects look like. Please be aware that if you decide to accept the offer of a lump sum, we will not charge you for our time in providing any advice and will simply close our file. Our Workers’ Compensation: What You Need to Know guide and our WorkCover claims guide explain where the Notice of Assessment sits in the statutory journey.

Notice of Claim for Damages

If an employer’s negligence caused or materially contributed to the injury and the worker chooses to lodge a common law claim, the worker’s compensation lawyer gathers the medical, economic, and liability evidence and lodges a Notice of Claim for Damages under the Queensland workers’ compensation legislation. The Notice of Claim puts the employer (and the insurer that indemnifies the employer) on notice and starts the pre-court process.

Pre-Court Steps and Settlement Conference

Before a worker can file a Claim in the Court, there are various pre-court steps to undertake, including participating in a settlement conference. The settlement conference is the structured opportunity for the parties to negotiate a resolution before court proceedings are filed. We prepare, attend, and negotiate for the worker. The majority of common law workers’ compensation claims are resolved at this stage rather than in court.

Court Proceedings if a Fair Resolution Is Not Reached

Where a fair resolution is not available at the settlement conference, the worker may decide to file a Claim in the Court. We advise on the merits of court proceedings before any decision is made and run the claim through to a properly finalised outcome.

Time Limits for a Common Law Claim

For common law claims in Queensland, the general limitation period is three years from the date of suffering a workplace injury under s 302 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). If the workers’ compensation insurer issues a Notice of Assessment less than six months before the end of this three-year deadline, the time to bring proceedings may be extended to six months after the worker receives a final Notice of Assessment under Schedule 5 of the Queensland workers’ compensation legislation.

Requirements vary by injury type and by when a worker first connected the condition to their work, so the safer approach is to have the deadlines reviewed for your specific situation rather than assuming an option has closed.

Factors That Affect the Size of an Award

The size of a common law workers’ compensation award depends on the structural drivers of each head of damage, not on a typical claim value. The principal drivers are:

• The severity of the injury and the permanent impairment, which sets the ISV range for general damages
• The worker’s pre-injury earnings and earning capacity, which sets the base for past and future economic loss
• The worker’s age and remaining working life, which affects the multiplier for future economic loss and future care
• The worker’s residual capacity to work in suitable employment, which reduces the future economic loss component
• The medical and rehabilitation evidence about future treatment needs
• The level of gratuitous care required and whether it meets the statutory thresholds for recovery
• Contributory negligence, which may reduce the damages awarded
• The strength of the liability evidence on each of the four negligence elements

Because each driver depends on the specific facts and evidence in the matter, no useful estimate of award size is possible without a proper case review. Information sources that quote specific dollar figures for a typical claim are not drawing on a reliable basis: the figure in any given matter is set by the drivers above and the expert evidence that supports each.

Frequently Asked Questions About Common Law Workers’ Compensation in Queensland

Do I Need a Notice of Assessment Before I Can Lodge a Common Law Claim?

A common law workers’ compensation claim is generally pursued after the statutory claim has been finalised and the worker has been issued with a Notice of Assessment. The exact sequence depends on your circumstances, so a compensation expert can review your situation and confirm the right sequence for your matter.

Can I Bring a Common Law Claim if I Have Already Accepted a Lump Sum?

Accepting a lump sum offer for permanent impairment can, in most cases, end the right to pursue common law damages, but the effect depends on the type and level of impairment and on the wording of the offer. Because the decision is usually final, we will review your matter and provide you with advice regarding any common law prospects so that you are well-informed before making any decision.

How Is Contributory Negligence Handled in a Common Law Claim?

Contributory negligence is where the worker’s own conduct contributed to the injury. If it is established, the damages awarded may be reduced by the percentage of responsibility attributed to the worker. The reduction is fact-specific.

Will My Common Law Claim Have to Go to Court?

The majority of common law workers’ compensation claims are resolved out of court at the settlement conference stage. We prepare your claim for conference first, and where a fair resolution is not achievable there, we walk you through the merits of court proceedings before any decision is made.

Can I Bring a Common Law Claim for a Psychological Injury?

Psychological injury claims are covered by the Queensland scheme in defined circumstances, including injuries caused by bullying, harassment, traumatic incidents, and sustained workplace stress. The evidence and process requirements differ from physical injury claims, and additional considerations apply to causation.

What If My Injury Was Caused by a Co-Worker, Not My Employer?

Employers may be vicariously liable for the negligence of their workers performed in the course of their employment. A worker injured by a negligent co-worker may, depending on the circumstances, have a common law claim against the employer on that basis. Whether vicarious liability applies in your situation depends on the facts, so a free case review is the best starting point.

How Much Does a Common Law Workers’ Compensation Claim Cost?

We act on common law workers’ compensation claims on a no win, no fee basis. You do not pay our professional fees unless the claim succeeds. Our fee structure sits below the Queensland legal profession cap under our Lower Fee Promise: professional fees are charged on the Federal Court Scale plus GST, the total is capped at one third of the settlement, and disbursements are absorbed by the firm rather than passed on to the worker.

Where to From Here

A common law workers’ compensation claim is one of the more important decisions an injured Queensland worker may face. The four elements of negligence set the threshold, the heads of damage shape what the claim is worth, and the pre-court process determines how the claim moves to resolution. If you have been injured at work in Queensland and an employer’s negligence may have caused or materially contributed to the injury, a free case review with an experienced compensation lawyer is the safest way to assess what a common law claim looks like for you.

This article was written by Sarah Grace, QLS Accredited Specialist in Personal Injury Law at Travis Schultz & Partners. For more information, contact your nearest office in Brisbane, Sunshine Coast, Gold Coast, Cairns, or Innisfail.